Bailey's Heirs v. Bailey's

35 Ala. 687

• Court: Supreme Court of Alabama
• Decided: January 15, 1860
• Status: Published

Opinion

R. W. WALKER, J.

The only questions presented for our consideration, arise out of the action of the court “ in permitting the proponent to prove, by the wetnesses, that Shadrach J. Bailey made his mark to the name of John 8. Bailey; and in allowing the will to be read to the jury as evidence.”

According to our law, no will is effectual, except in certain specified cases, “ unless the same is in writing, signed by the testator, or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.” — Code, § 1611.

The 5th section of the English statute of frauds (29 Car. 2d) required, that wills of real estates should be “ in writing, and signed by the party devising the same, or by some other person in his presence, and by his express direction, and should be attested and subscribed, in the presence of the devisor, by three or four witnesses.” 1 Jarm. Wills, 112. That part of section 1611 of the Code, which relates to signing by the testator, is a substantial transcript of the words of the English statute relating to the same subject. not that it be signed in the name of the testator — and any signature intended to authenticate the instrument would be sufficient for this purpose. — See 1 Jarm. Wills, 144.

Thus, a testatrix signed her will with a mark, her name not appearing upon the face of the instrument: held to be a sufficient signing. — In re Bryce, 2 Curteis’ Ecc. R. 325. In in re Ashmore, (3 Curteis’ Ecc. R. 756,) a testatrix had produced a codicil, all in her own hand-writing, and with her signature made thereto, to two witnesses, present at the same time, who, at her request, made their marks thereto; the testatrix wrote the names of the witnesses opposite their respective marks, and by mistake a wrong surname of one of them. Sir Herbert Jenner Eust, said: “It is quite clear, upon the affidavits, that the deceased must have written the name of Cummins, by mistake, for Sharpe. I do not think this fact of any serious importance; here are two witnesses, who duly attested this paper, and recognize their mark.” And the will and codicils were admitted to probate.

So it is held, that where a testator requests another person to sign the will for him, and the person thus requested signs in his own name, not in that of the testator, the signature is nevertheless a compliance with the statute. Thus, the testator, being too'weak to sign the will himself, requested a Mr. Furlong to sign it for him; and Mr. F. signed the will in his own name, thus — “ Signed on behalf of the testator, in his presence, and by his direction, by me, C. F. Furlong, vicar of Wakefield, Berks.” The same judge said: “ The statute allows a will to be signed for the testator by another person, audit does not say that the signature must be in the testator’s name.” The will was admitted to probate. — In re Clark, 2 Cur. Ecc. R. 329.

A testatrix, having duly executed her will under an assumed name, subsequently altered the will by erasing that name, and signing her truéname; but the witnesses did not subscribe the will as altered. Probate was granted of the will as it originally stood, as the court considered that the assumed name might stand for and pass as the mark of the testatrix. — In re Redding, 2 Robertson’s Ecc. R. 339. See, also, Vernor v. Kirk, 30 Peons. St. R. 218.

The words of tbe English statute, which relate to signing by the testator, had a recognized judicial signification when they were embodied in our statute of wills; and the presumption is, that the legislature intended them to receive the construction which had been placed upon them before the adoption of the statute. — Armstrong v. Armstrong, 29 Ala. 540.

True, the Code (§ 1) provides, that “signature,” or “ subscription,” (when used in the Code,) “ includes mark, when the person cannot write ; his name being written near it, and witnessed by a person who writes his own name as-a witness.” We do not think, however, that this provision can be properly held to unsettle the established construction, which the words ‘signed by the testator,’ as used in our statute of wills, had received before its adoption; and according to that construction, the testator’s mark may be a valid signature, without the concurrence ,of all the circumstances specified in section 1 of the Code.

The citations we have made are sufficient to show, that the court did not err in permitting the proponent to prove that “ Shadrach J. Bailey made his mark to the name of John S. Bailey.” It does not appear, indeed, that the testator directed the*witness Smith to attach any name to the mark. He made the mark himself; and if he intended thereby to authenticate the instrument as his will, this was a signing by him, within the meaning of the statute.

There was clearly no error in allowing the will to be read to the jury as evidence. — Morris v. Varner, 32 Ala. 499.

Decree affirmed.